Gujarat High Court
Dhilubhai Isakbhai Katia vs State Of Gujarat on 13 November, 2025
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.A/940/2007 JUDGMENT DATED: 13/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 940 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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Approved for Reporting Yes No
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DHILUBHAI ISAKBHAI KATIA
Versus
STATE OF GUJARAT
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Appearance:
MR. KARAN U VYAS(6992) for the Appellant(s) No. 1
MS DHRUMA U VYAS(6850) for the Appellant(s) No. 1
MR ROHANKUMAR RAVAL, ADDITIONAL PUBLIC PROSECUTOR for
the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 13/11/2025
ORAL JUDGMENT
1. The appellant has challenged the correctness of the judgment of conviction passed on 30.06.2007 by the learned Special Judge, Fast Track Court, Surendranagar in Special Electricity Case No.46 of 2006. The appellant-accused came to be convicted under Section 135 of the Electricity Act, 2003 (hereinafter referred to as 'the Act' for short) and was ordered to undergo three years rigorous imprisonment with a fine of Rs.52,690/- and in default of payment of fine, further two years of simple imprisonment. The Page 1 of 14 Uploaded by PARMAR KRISH JAYESH(HC02348) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 04:26:40 IST 2025 NEUTRAL CITATION R/CR.A/940/2007 JUDGMENT DATED: 13/11/2025 undefined fine amount was ordered to be paid to complainant - PGVCL.
2. The charge against the appellant-accused was that on 27.09.2005, when the prosecution witness-Deputy Engineer of Joravarnagar Sub- Division inspected Gandavadi area at Ratanpar at the residential house of accused, though the accused was not the legal consumer of the Board, the Officer found illegal tapping of electricity by joining the wire with the electricity line of the Gujarat Electricity Board, which was passing near the house of the accused. It is alleged that the theft was of 415 watts with the electricity consumption to the value of Rs. 17,562/-.
3. Learned Advocate Mr. Karan U.Vyas referring to the evidence of the prosecution witness - Deputy Engineer - Bharatkumar Prathameshkumar Shrimadi, submitted that the authority for inspection in the area, referred to as Ratanpar in the said sub-division, has not been produced on record by the Officer to substantiate whether inspection on that day done by the Officer concerned was legal.
3.1 Learned Advocate Mr. Karan Vyas submitted that the ownership of the house of accused has not Page 2 of 14 Uploaded by PARMAR KRISH JAYESH(HC02348) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 04:26:40 IST 2025 NEUTRAL CITATION R/CR.A/940/2007 JUDGMENT DATED: 13/11/2025 undefined been proved. The accused was not present at the time when the Deputy Engineer visited his house and a woman was shown to be as representative of the accused, while no evidence is coming on record to know the name of the woman present there, or any documentary evidence which could give the identification of the alleged representative of the accused.
3.2 Learned Advocate Mr. Karan Vyas submitted that the evidence would suggest that the checking for almost about 20 to 25 places were done and it is stated that there were cases of eight to ten electricity theft noted by the witnesses. Learned Advocate Mr. Vyas submitted that, in that circumstances, the regular record maintained by the Officer for each and every such case was required to be proved since the checking in bulk would lead to erroneous conclusions unless documents are properly maintained and proved to show the actual theft.
3.3 Learned Advocate Mr. Vyas further stated that any appliances, as alleged to be used by the accused with the electricity as considered to be theft were not seized. The seizure memo has not been proved and there is no record that a copy of seizure memo was handed-over to the representative as alleged to be of the accused.
Page 3 of 14 Uploaded by PARMAR KRISH JAYESH(HC02348) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 04:26:40 IST 2025NEUTRAL CITATION R/CR.A/940/2007 JUDGMENT DATED: 13/11/2025 undefined Learned Advocate Mr. Vyas submitted that there is no plausible reason for delay of about 18 days in filing the complaint, which itself is contrary to the provision of Section 135 of the Act. It is also submitted by learned advocate Mr. Vyas that the Panchnama was not drawn of the alleged placed; no independent witness, who had witnessed the said checking has been examined. The local police was not informed. The evidence would rather suggest that even the superior Officer was not immediately informed about the alleged theft.
3.4 Learned Advocate Mr. Vyas further stated that the seized wire was not produced as muddamal during the trial since the witness as an Investigating Officer - PW 4, does not state of any recovery of the muddamal from the Deputy Engineer or the lineman, who have been examined during the trial.
3.5 Learned Advocate Mr. Vyas submitted that the impugned judgment and order is illegal, incorrect, improper and not valid as per the provision of the law. Learned Special Judge has failed to appreciate that merely on the oral evidence of the witnesses, without any corroborative piece of evidence to become a substantial proof, no conviction can lie. The Page 4 of 14 Uploaded by PARMAR KRISH JAYESH(HC02348) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 04:26:40 IST 2025 NEUTRAL CITATION R/CR.A/940/2007 JUDGMENT DATED: 13/11/2025 undefined muddamal article was required to be produced before the learned Trial Court Judge to prove the actual theft, and in absence, it cannot be believed that there was any illegal tapping of electricity.
3.6 Learned Advocate Mr. Vyas stated that the allegation of theft of 415 watts for his utilization in domestic purpose cannot be believed and thus, further submitted that the imposition of fine of Rs. 52,260/- on the head of the appellant would become illegal, thus, urged to allow the appeal and acquit the accused.
4. Countering the arguments, learned APP Mr. Rohan H. Rawal stated that the prosecution witness No.1 is a Deputy Engineer and would have no reason to falsely implicate the present accused. It is not a case of any personal enmity of the Officer with the accused. Learned APP Mr. Rawal submitted that the inspection, which was conducted on 27.09.2005 was on the instruction of the superior Officer. The accused was non- customer and the consumption has been found illegal, which was by extending wire of 23 meters on the electricity line, passing near the house of the accused and 415 watts of electricity theft was found, which was used for Page 5 of 14 Uploaded by PARMAR KRISH JAYESH(HC02348) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 04:26:40 IST 2025 NEUTRAL CITATION R/CR.A/940/2007 JUDGMENT DATED: 13/11/2025 undefined functioning of the domestic appliances noted in the Rojnama, which were three fans, three bulbs and one tube. Learned APP Mr. Rawal submitted that the Rojnama notes the name of the accused, and the female representative who was present there, had given the name of the actual owner of the house.
4.1 Learned APP Mr. Rawal submitted that the seizure memo at Exh.14, the complaint at Exh.15, checking-sheet at Exh.12 and Rojkaam at Exh.13 proves the actual incident. Learned APP Mr. Rawal further stated that it was not the single case of the present accused. On that very day, the inspection was carried out in the whole area and the complaints were to be registered against eight to ten such illegal acts, and, therefore, the delay in filing the complaint has been explained by the witness-PW1.
4.2 Learned APP Mr. Rawal submitted that such kind of illegal tapping by hooking the wires on the electricity line is rampant and, thus, to set an example and to deter the other non-consumers from entering into such illegal activity, learned APP Mr. Rawal submitted to confirm the sentence and to dismiss the appeal.
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5. The allegation against the accused is under Section 135 of the Act. Section 135 notes that whoever dishonestly taps, makes or causes to be made in connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee or supplier, as the case may be, so as to abstract or consume or use electricity, shall be punishable with imprisonment for the term which may extend to three years or with fine or with both. Such provision is made under Section 135(1)(a). The provision, thus, provides that any tapping with the overhead connection dishonestly to abstract or consume or use electricity is punishable offence. However, the section lays down certain proviso, which would regulate the act of the Officers of the Electricity Board. The presumption with regard to abstract or consume or use of electricity, dishonestly caused by the consumer is required to be made, provided it is shown as mandated by law that artificial means or means not authorized by the Board or licensee or supplier exists for the abstraction or consumption or use of electricity by the consumer. Such artificial means or unauthorised means used are to be cogently proved by evidence to draw any presumption of illegality.
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6. Here, in the present case, the accused is a non-
consumer. The electricity theft is conducted by making an overhead connection with the cable, which is alleged to have been used for the theft of 415 watts of electricity. The checking sheet has been produced. The checking sheet does not reflect the signature of the accused. Admittedly, appellant-accused was not present at the time when the checking was done by the Officer of the Electricity Board, still the woman representative, who was there, is also not identified. The Officers had not made any efforts to even note the name of the woman representative who, as said, was present at the place of the incident. The connection of the accused with the house and with the appliances which were stated to be used as of three fans, three bulbs and one tube could not be proved. The connection of the accused with the house by showing the ownership of the house was required to be proved. The Panchnama could have been relevant and reliable evidence, where the independent persons as Panch could have proved the said alleged illegal activity of the accused. The wire which is said to be used has not been made the part of the trial as muddamal. Sub-section (3) of Section 135 of the Act clarifies that the occupant of the place of search or any person on his behalf shall remain Page 8 of 14 Uploaded by PARMAR KRISH JAYESH(HC02348) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 04:26:40 IST 2025 NEUTRAL CITATION R/CR.A/940/2007 JUDGMENT DATED: 13/11/2025 undefined present during the search and a list of all things seized in the course of such search shall be prepared and delivered to such occupant or person who shall sign the list. The prosecution witness could not prove whether the woman representative was the occupant of the house. The place was searched, while that act of search could not be proved by way of copy delivered to the occupant or to the person, who should have been asked to sign the seizure-memo.
6.1 Deputy Engineer - Bharatkumar Shrimadi (PW1) has affirmed that he had not seized any evidence with regard to the ownership of the house of accused to be handed over to police. He has not verified as to who was the female representative on behalf of accused. Witness (PW1) stated that the neighbors were asked to remain present as the Panchas, but none were present there. Witness (PW1) stated that he has not seized the appliances, which were illegally used for the alleged electricity theft. The Panchnama of the wire was also not prepared.
7. The allegation is of illegal tapping with the overhead wire from the electricity poll of the Board, but the Deputy Engineer has affirmed that serial number of the electricity poll has not been recorded. The Panchnama or the complaint Page 9 of 14 Uploaded by PARMAR KRISH JAYESH(HC02348) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 04:26:40 IST 2025 NEUTRAL CITATION R/CR.A/940/2007 JUDGMENT DATED: 13/11/2025 undefined does not bring any clarification by noting the adjoining properties of the place, which was inspected by the Officer.
8. The inspection was conducted on 27.09.2005, while the complaint was received by PW3 - Head Constable, on 20.10.2005. PW3 - Narendrasingh Gohil was serving as Head Constable for last two and half years at the Gujarat Electricity Board Police Station. In the evening, at about 5 0' clock on 20.10.2005, he received the complaint from U.P. Shrimadi and then he registered the offence as Cr.No.1018/2005 under Section 135 of the Act, by making Entry No.07. The copy he had produced at Exh.20. In the cross-examination he affirmed that he has not verified the complaint nor has made any verification regarding the checking-sheet or the Rojnama.
9. PW2 - Natubhai Vaniya was the lineman on that day. He referred to the illegal line with the overhead connection. According to him, the wire was about 30 meters long, which he said that his Officer had seized it. The woman was present at the house of the accused. The witness affirmed that serial number of the Electricity Poll from where the wire was removed was not recorded nor the feeder of the Electricity Poll was noted. The very strange aspect becomes noticeable is Page 10 of 14 Uploaded by PARMAR KRISH JAYESH(HC02348) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 04:26:40 IST 2025 NEUTRAL CITATION R/CR.A/940/2007 JUDGMENT DATED: 13/11/2025 undefined the woman, who was present there, her identification was not recorded by both the witnesses. They have not even noted her name to prove the presence of the representative of the occupant.
10. The Investigating Officer - PW4 - Umarbhai Namudia received the investigation. According to his evidence on 14.12.2005, he arrested accused and filed the charge-sheet on 17.12.2005. The witness as Investigating Officer has affirmed that he has not received any document to show the ownership and occupancy of the house. No statements of any neighboring persons were recorded. There were no independent witness except Officers of the Electricity Board. It appears that the Investigating Officer has not taken further statement to get any clarification for the delay in filing the complaint. Further verification was also required to be made by the Investigating Officer since the checking on that day was made in bulk. The Investigating Officer also did not deem fit to receive the muddamal alleged to have been used for the electricity theft i.e. the wire.
11. Section 135 of the Act mandates that the Officer of the licensee of the supplier shall have to lodge the complaint in writing relating to the Page 11 of 14 Uploaded by PARMAR KRISH JAYESH(HC02348) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 04:26:40 IST 2025 NEUTRAL CITATION R/CR.A/940/2007 JUDGMENT DATED: 13/11/2025 undefined commission of offence to the police station in jurisdiction within 24 hours from the time of any disconnection made by them. Here, in this case, no such efforts have been made. The presumption of the illegal act could be made only when the primary evidence had been produced by the prosecution witness. The artificial means which were alleged to be used for abstraction or consumption or use of electricity has not been produced as muddamal during the trial to substantiate the prosecution case to draw any presumption against the accused of any dishonest act of electricity theft.
12. In view of the above, the observations of the learned Judge convicting the accused, this Court believes, has not been in consonance with the provisions of Section 135 of the Act. The basic requirement to draw the presumption of leading the evidence from the prosecution side has not been appreciated by the learned Trial Court Judge. All the acts of the prosecution witness were considered to be fair on the ground that they had no enmity, no prejudice with the accused to falsely involve them, however, the learned Trial Court Judge has failed to consider the fact that the day on which the checking was done, the task was assigned to the witness and to show the success of the work, there would be Page 12 of 14 Uploaded by PARMAR KRISH JAYESH(HC02348) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 04:26:40 IST 2025 NEUTRAL CITATION R/CR.A/940/2007 JUDGMENT DATED: 13/11/2025 undefined all possibilities of arraigning wrong person to face the trial.
13. The provision under Section 135 of the Act makes certain fetters, which the Officers of the supplier of licensee are required to be followed in way of mandatory provision. The search, seizure and the removal of the devices and instruments, wires and any other facilitator or article used for unauthorized use of electricity, other documents or books or any other fact of breaking open the premises has to be made in a legal way. The promptness in filing the complaint would remove all the assumptions of any manipulation or wrong doing or any misdemeanour of the Officers to create documents, to falsely implicate wrong persons to prove their work before the Superior Officer. The provision under Section 135 of the Act, therefore, has been provided to safeguard interest of the person, whose house would be inspected by the Officer concerned.
14. The prosecution had failed to prove the case.
This Court finds that the conviction is not legal and is not valid, as per the law.
15. In the result, the appeal is allowed. The judgment of conviction and sentence dated Page 13 of 14 Uploaded by PARMAR KRISH JAYESH(HC02348) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 04:26:40 IST 2025 NEUTRAL CITATION R/CR.A/940/2007 JUDGMENT DATED: 13/11/2025 undefined 30.06.2007 passed by Special Judge, Fast Track Court, Surendranagar in Special Case No.46 of 2006 is set aside. The amount deposited as fine be handed over back to the appellant after verification of the identity.
16. Record and Proceedings be sent back to the concerned Court forthwith.
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